On December 31, 2015, the Court of
Appeals of Indiana decided Collip
v. Ratts, and concluded that under a Collaborative Practice Agreement
(“CPA”), a physician owes a duty to the patients of his collaborating nurse
practitioner.
In
Collip, Dr. John Collip and nurse
practitioner, Dena Barger, entered into a CPA under which Collip provided
oversight to Barger. The CPA required
Collip to oversee Barger’s authority to prescribe drugs by reviewing at least
5% of Barger’s charts on a weekly basis, a requirement with which Collip failed
to comply. Barger treated a patient
named Robert Ratts by prescribing him multiple medications. However, Collip never
treated or saw Robert and never reviewed Robert’s medical records. On March 30, 2009, Robert died from “acute
bronchopneumonia complicating mixed drug interaction.” Robert’s mother, Vickie Ratts, filed a medical
malpractice complaint against Collip, Barger, and Barger’s clinic. Ratts
argued that Collip owed a duty to Robert as a matter of law. By contrast, Collip argued that he did not owe
a duty to Robert as a matter of law. The trial court ruled in favor of Ratts,
granting her motion for summary judgment, which Collip appealed.
The
Court of Appeals of Indiana reviewed the trial court’s decision de novo, and ultimately affirmed,
holding that physicians have a duty to the patients of nurse practitioners to
fulfill their obligations under CPAs with reasonable care. The Court acknowledged that at common law, a
physician does not owe a duty to a patient unless a physician-patient
relationship exists. But, the Court
found a duty to exist under the test set forth by the Indiana Supreme Court in Webb v. Jarvis. According to Webb, to determine whether a physician has a legal duty to a third
party to whom he had not provided any medical treatment, three factors should
be balanced together: (1) the relationship between the parties; (2) the
reasonable foreseeability of harm to the person who was injured; and (3) public
policy concerns.
The
relationship between Collip, Barger, and Robert weighed in favor of the
existence of a legal duty. While the
only link between Collip and Robert was the CPA, Indiana law does not preclude
liability in tort for personal injury simply due to lack of privity. If one has actual knowledge that a third
person might reasonably be affected by, and benefit from, provision of their
services, a duty is owed. Collip had actual knowledge that Robert
might reasonably be affected by, and benefit from, the performance of his
services under the CPA. This weighs in
favor of the existence of a legal duty.
The
reasonable foreseeability of harm to Robert also weighed in favor of the
existence of a legal duty. For this
factor to be satisfied, the person actually harmed must have been a reasonably
foreseeable victim, and the type of harm actually inflicted must have been
reasonably foreseeable. Robert was a
reasonably foreseeable victim because Collip failed to adequately perform his
oversight duties. Robert’s death was
also foreseeable because Collip negligently performed his obligations under the
CPA. This weighs in favor of the
existence of a legal duty.
Public
policy concerns weighed in favor of the existence of a duty, as well. One of the purposes of the detailed statutory
scheme put forth by the legislature was to ensure the safety of the patients of
nurse practitioners. This can only be
accomplished through meaningful oversight of a physician. However, without a legal duty to provide
meaningful oversight, there is no incentive for physicians to do so, which will
likely result in a lack of meaningful oversight in CPAs. This will jeopardize the safety of the
patients of nurse practitioners, so public policy necessarily favors the
existence of a legal duty. Upon
balancing of the three Webb factors,
the scales undoubtedly tip in favor of physicians owing a legal duty to the
patients of nurse practitioners.
The
Court also utilizes the Restatement (Second) of Torts in coming to its
conclusion. Id. Section 324A states, “[o]ne
who undertakes…to render services to another which he should recognize as
necessary for the protection of a third person…is subject to liability to the
third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if (a) his
failure to exercise reasonable care increases the risk of such harm…”
The Court found this section to apply
to any undertaking, including the
undertaking made by Collip. Collip
undertook a duty to direct and supervise Barger in her prescribing practices,
and his services were necessary for the protection of Barger’s patients. Therefore, because Collip did not exercise
reasonable care in performing his duties under the CPA with Barger, he increased
the risk of physical harm to Barger’s patients.
The
Court of Appeals of Indiana held that physicians owe a duty to the patients of
collaborating nurse practitioners. As a result, Collip owed a duty to Robert
Ratts. According to the Court, the
relationship between Collip and Robert, the reasonable foreseeability of harm
to Robert, and public policy all weigh in favor of the existence of a duty, and
the Restatement (Second) of Torts also supports the existence of this duty. Therefore, to avoid medical malpractice
liability, Indiana physicians must be meticulous and mindful that they are
fulfilling their obligations under their Collaborative Practice Agreements with
reasonable care.
Lacey Rogers is currently a 2L at DePaul University College of
Law. She hold a B.A. from the University of Toledo, where she majored in
philosophy and minored in psychology. Lacey plans to graduate from DePaul in
2017 with her J.D. and Health Law Certificate.